Denominational School Rights in the Canadian Constitution

The Canadian Constitution consists of a collection of Acts having the status of constitutional law. Following are excerpts from each of the Acts conferring denominational school rights on particular religious groups.

It should be noted that Québec and Newfoundland separately eliminated constitutionally protected denominational schools in the 1990s. The governments of these provinces first obtained constitutional amendments rescinding denominational school rights through the bilateral constitutional amendment mechanism specified in Section 43 of the Constitution Act, 1982. Manitoba eliminated denominational schools unilaterally in 1890, though these were not protected to the same degree as those in other provinces.

In Canada today, constitutionally protected denominational schools exist for members of the Catholic faith alone and only in Ontario, Alberta, and Saskatchewan. Ontario is by far the most discriminatory of these three provinces, providing 100% funding for Catholic religious schools while providing absolutely nothing for the religious schools of every other faith. Alberta and Saskatchewan provide 100% funding for Catholic religious schools, but also provide an inferior level of support for non-Catholic religious schools.

Constitution Act, 1867 (the BNA Act)

Section 93 describes denominational school rights as they apply to Ontario (and by reference in other Acts, to Saskatchewan and Alberta). Section 93 also applied to Québec until the proclamation of Constitution Amendment, 1997, (Québec) (see Section 93A. below). Ontario could obtain a similar amendment very quickly ("93B. Paragraphs (1) to (4) of section 93 do not apply to Ontario.").(full text of Act...)

93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:--

(1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

(2) All the Powers, Privileges and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec:(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education:(4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.(50)

Manitoba Act, 1870

22. In and for the Province, the said Legislature may exclusively make Laws in relation to Education, subject and according to the following provisions:

(1) Nothing in any such Law shall prejudicially affect any right or privilege with respect to Denominational Schools which any class of persons have by Law or practice in the Province at the Union:(2) An appeal shall lie to the Governor General in Council from any Act or decision of the Legislature of the Province, or of any Provincial Authority, affecting any right or privilege, of the Protestant or Roman Catholic minority of the Queen's subjects in relation to Education:(3) In case any such Provincial Law, as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section, is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper Provincial Authority in that behalf, then, and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial Laws for the due execution of the provisions of this section, and of any decision of the Governor General in Council under this section.

Saskatchewan Act, 1905

Section 17 describes denominational school rights as they apply to Saskatchewan. Section 17 includes Section 93 of the Constitution Act, 1867 by reference, thus Section 93 also has some applicability in Saskatchewan.(full text of Act...)

17. Section 93 of the Constitution Act, 1867 shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:-"(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances."

(2) In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29, or any Act passed in amendment be no discrimination against schools of any class described in the said chapter 29.(3) Where the expression "by law" is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and where the expression "at the Union" is employed, in the said paragraph (3), it shall be held to mean the date at which this Act comes into force.

Alberta Act, 1905

Section 17 describes denominational school rights as they apply to Alberta. Section 17 includes Section 93 of the Constitution Act, 1867 by reference, thus Section 93 also has some applicability in Alberta.(full text of Act...)

17. Section 93 of the Constitution Act, 1867 shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:-"(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances."

(2) In the appropriation by the Legislature or distribution by the Government of the province of any moneys for the support of schools organized and carried on in accordance with the said chapter 29, or any Act passed in amendment be no discrimination against schools of any class described in the said chapter 29.(3) Where the expression "by law" is employed in paragraph (3) of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30; and where the expression "at the Union" is employed, in the said paragraph (3), it shall be held to mean the date at which this Act comes into force.

Newfoundland Act, 1949

Term 17 of the Terms of Union in the Act once described denominational school rights as they applied to Newfoundland. Denominational school rights were eliminated from the Constitution as it applies to Newfoundland through Constitution Amendment, 1998, (Newfoundland Act). This amendment was proclaimed into law only four months after being requested by the provincial legislature. Ontario could easily follow suit. Following is Term 17 as it reads today.(full text of Act...)

17. (1) In lieu of section ninety-three of the Constitution Act, 1867, this Term shall apply in respect of the Province of Newfoundland and Labrador:

(2) In and for the Province of Newfoundland and Labrador, the Legislature shall have exclusive authority to make laws in relation to education but shall provide for courses in religion that are not specific to a religious denomination.(3) Religious observances shall be permitted in a school where requested by parents.